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/ .812 

-^ C~5 Copy 1 




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HAWAIIAN ANNEXATION. 



The Joint Resolution— An unconstitutional usurpation of the prerogativo 

of the President of the United States and Senate 

as the treaty-making power. 



SPEECH 



HON. A. O. BACON, 



OF GEORGIA, 



IN THE 



SENATE OE THE UNITED STATES, 



Monday, June 20, 1893. 



WAtJMIiNOrO.M. 

1898. 



.T) 






j(^ 



72 



SPEECH 

OF 

HON. A. 0. BACON. 



The Senate having under consideration the joint resolution (H. Res. 259) to 
provide for annexing the Hawaiian Islands to the United States- 
Mr. BACON said: 

Mr. President: I presume it will be recos-nized by all that 
there can be no more important question than this before the coun- 
try to-day. It is not simply the question of the annexation of a 
very small piece of territory, but, considered with reference to the 
merits of the case, it is one which involves the utter revolution of 
the practice and traditions of our Government with reference to 
its benefits to the people and the obligations which it lavs upon 
them. 

It is not my purpose at this time to discuss the general merits 
of this proposition. I am inclined to address the Senate at this 
time because the particular branch of the discussion to which I 
shall direct my attention is one which goes to the root of the 
matter and which ought, if my contention is correct, to control 
the action of the Senate. 

Before proceeding with it, I think, however, I may be excused 
for remarking that certainly this is a strange presentation to the 
country, that in a matter of such gravity, that in a matter of such 
wide-reaching importance, the advocates of the measure have 
nothing to say. Ordinarily in measiires of importance which come 
from the Foreign Relations Committee we have a report. In this 
instance the committee have not even honored us with a report. 
Ordinarily not only do we have a report, but we have from the 
chairman of that committee or some member representing the 
committee an elaborate presentation of the reasons why the legis- 
lation is recommended by that committee. But here we have 
neither report nor presentation. We have simply presented to tlie 
Senate a bill which has been passed by the Houss", and witliout re- 
port and without discussion those who hold to the allirmative ask 
the Senate to act. It is as if, confident of a majority, they should 
say, "We propose to do thus and so, right or wrong, and give no 
reason for it; and what are you going to do about it?' That is the 
attitude which the committee occupy in coming before tlie Senate. 
Mr. President, as I stated, it is not my purpose to discuss the 
general merits of the proposition to annex the islands of Hawaii, 
certainly not at this time; but I propose to present to the Senate 
a in-oposition and to ask that they may give me their attention 
while I discuss it, which, if it be true, as 1 have previously said, 
ought to control the action of the Senate and make them say that 
they will not pass the bill which the House lias sent to us. 
3505 3 



The proposition which I propose to discuss is that a measure 
which provides for the annexation of foreign territory is neces- 
earilv. essentially, the subject-matter of a treaty, and that the as- 
sumption of the House of Representatives in the passapre of the 
bill, and tlie proiiosition on tiie part of the Foreign Relations 
Committee that the Senate shall pass the bill, is utterly without 
warrant in the Constitution. 

I\rr. President, the Senator from Colorado [Mr. Teller] saj's 
that he would be very glad to vote on this question to-day; that 
his mind is made up." The Senator from Colorado is one of the 
Senators whom I am anxious to speak to to-day, not because I be- 
lieve 1 can change his mind or his opinion on the general merits 
of this question ."but because I desire to ask him and all Senators, 
especially those who are lawyers, to consider the question whether 
or not they have the right, under their constitutional obligations, 
to vote for this resolution, however much they may favor the an- 
nexation of Hawaii. 

Mr. TELLER. Will the Senator permit me to answer that 

Mr. BACON. I beg that the Senator will hear me before he 
answers. 

Mr. TELLER. I want to say that I will hear the Senator, but 
the Senator is not to understand that I have not myself considered 
this question verv carefully. J will hear the Senator, of course. 

Mr. BACON. "Mr. President, of course I do not presume that 
the Senator from Colorado had not considered this question, but 
we are here for the purpose of interchanging views. I have great 
confidence in the Senator from Colorado, and am gratified by the 
fact that I seldom differ from him, and I shall be more than grati- 
fied if we can get together upon this question. 

I assume that Senators will not vote for a resolution if they can 
be satisfied that it is unconstitutional. I assume that they will 
not vote for an unconstitutional resolution which directly impairs 
and strikes down one of the highest prerogatives of the Senate; and 
it is to that question that I propose to address myself to-day and 
upon which 1 am extremely anxious to have the hearing of Sena- 
tors who favor the annexation of Hawaii. 

The proposition which I had stated before the interruption was 
this: That a joint resolution for the annexation of foreign terri- 
tory was necessarilv and essentially the subject-matter of a treaty, 
and that it could not bo accomplished legally and constitutionally 
by a statute or joint resolution. If Hawaii is to be annexed, it 
ought certainly to be annexed by a constitutional method: and if 
by a constitutional method it can not be annexed, no Senator 
ought to desire its annexation sufficiently to induce him to give 
his support to an unconstitutional measure. 

I trust, Mr. President, that the time has not come when a Sen- 
ator can not appeal with confidence to his fellow-Senators in op- 
position to a measure on the ground that it is unconstitutional. 
It matters not how important it may be that Hawaii should be 
annexed, it matters not how valuable it may be. it will be too 
costly if its price is the violation of a great fundamental provision 
of the Constitution of the United States. 

]Mr. President, it is a painful fact that not only people at large, 
but officials are losing to some extent the reverence which they 
ought to have for constitutional obligations. It is a matter of a 
3oaj 



smile ^Mtll somo v/heu yon oppose a measure on the ground that 
It s unconstitutional, and I confess that I have been pluned vheu 
I have heard, as 1 have heard in this Chamber, learned and dis- 
tinguished Seimtors say tliat they would approve and applaud the 
action of the President of the United States if he Sou d seize 
Hawaii and run up upon it the flag of the United States, and take 
ESSr ""' ^'' property of the United States 'as a wa? 

I say I have been pained when I have heard that as I have 
qSSnv^'" this Chamber from very learned and very distinguished 
Jf +1 TT ' -^ ? L '^'''T ^^"' '"^^"^ than gratified that the President 
ot the United Stateshas notsutiered himself to be guided bvsmh 
too ish and sucn unwise counsels. If he had done %o, every lover 
o. his country must have been grieved that such a blow had 
been stricken at the integrity of the Constitution 

Mr. President, it surprises me that I even liave to mention such 
fin^feTwnr"^ ^f '^ '^? P^^^^^^*^^^* of the United Stages can ?S 
time ot war, or at any other time, without the action of Congress 
in the performance of its constitutional functions, take possession 
ot the terntory of a friendly power, proclaim it as the territory of 
the Lmted States, run the flag of the United States up over it S 
the insignia of its power and its dominion-if he can do so in oiie 
case, he can do so in an v. 

If the President of the United States can do it in the case of 
Hawaii, he can with equal propriety and legality do it in the case 
o. Jamaica, and I repeat that 1 am more than gratified. althoiS 
my apprehensions were aroused by the source from which tlurse 
intimations came, that the President of the United States has 
not seen proper to listen to their unwise counsels 

And 3-et, Mr President, if my view of this question is correct 
the President of the United States would have as mnch powJi to 
take possession of the Island of Hawaii bv a proclamation as would 
the Congress of the United States have the Vowe" to gain posses 
sion of It by a .lo.nt resolution of the two Houses. The po^?el s of 
the executive department and the legislative department are as 
di.stinctly divided the one from the other as are the powers of thi 
judicial department and the legislative department 

1 here are tAvo kinds of law which are recognized" bv the Consti- 
tution of the United States and which are prmnd^d for bv the Con- 
stitution of the United States, and each of these IdncL^^ofhiw^a 
termed m the Constitution of the United States the supivn r la v 
of the land. One class of these laws is statute law. and it is i r^ 
vided tha statute law shall be enacted by Congress: that sta u£ 
law shall be 111 ade by a majority vote of the House of Re presen a 
tWiM;f.° *'^' 1'"^^"' ^'^^^\^^ approval of the President or 
bv the Kvn l\V,T^^\''' %""!? ""V'^ disapproval of the President, 
tZiff- i°'*'"'^'.-''?^''ptt^''^ ^^^"•'''^ ot^' Hepresontativesand the 
twotlnrds vote ot the Senate, overriding his veto and that law 
when made, is dec-lared by the Constitut];.n of the tf t >a sS 

JnH^*^Vl?^'r-^'';\"^t^^'='"^^- I" the same way the cS 
tilt o of the United States declares that there are other laws 
which are also .supreme, and tliose laws arc made as 1 reaties The 

Sho n;;.''of .V^'^^^"'''^ S*^^^*-^^ "^ the same section declares 
both ot the^e as the supreme law of the land 

tint, f "^''■*'"'*' ^''"V* "t the United States in construing the ,iues- 
t on of supremacy has ruled that each is supremo. It has ruled 
that a treaty may be nullified by a statute anil that a statute may 



6 

be nullified by a, treaty, and tliat where they come in conflict 
the question of the later is the one invoked to determine which 
shall prevail. As to those two classes of law, each one of them 
supremo, there is provided in the Constitution an entirely distinct 
method by which they may be enacted or mjfde. I have stated 
the manner in which the statute law is made. Now, in an en- 
tirely different manner, the Constitution of the United States de- 
clares how a treaty, which is also a supreme law, shall be made. 
It declares that a treaty must be made by the President of the 
United States, by and with the advice and consent of two-thirds of 
the Senate present. I am not quoting literally, but stating it sub- 
stantiallv. 

1 ask the attention of Senators to this most marked provision in 
the Constitution of the United States and the two distinct classes of 
law, each of them declared by the Constitution to be supreme, each 
of them declared by the Supreme Court of the United States in con- 
struing that provision to be equally supreme with the other, which 
are made and enacted in specific ways in the manner pointed out 
in the Constitution, one totally different from the other. Is that 
provision of the Constitution a vital principle? Does it mean any- 
thing? Is it possible that the power which is clothed by the Con- 
stitution with the authority to make one class of laws can make 
the other class of laws? 

Is it possible that the power which is conferred upon the Con- 
gress of the United States, the lawmaking power, the Senate and 
the House, with the approval of the President, can be used to 
make that other supreme law which the Constitution says shall 
be made in a different way, to wit, by the President, with the ad- 
vice and consent of the Senate? If it is possible for the House of 
Representatives and the Senate and the President, acting in the 
lawmaking capacity, and known generally in the Constitution as 
Congress, can make a treaty, and in so making it make it the 
supreme law of the land, then tliis joint resolution is. constitu- 
tional. But if it be true that when the Constitution devolved 
upon the Pre=^ident and the Senate the power to make treaties it 
denied to the Congress of the United States the right to make 
treaties, then the joint resolution is necessarily unconstitutional, 
as I shall endeavor to show. 

JMr. Pre^dent, the Constitution gives to the President the power 
to appoint all officers of the United States by and with the advice 
and consent of the Senate. If Congress can by statute make a 
treaty, why may it not by a statute make an ambassador or a 
chief justice or a general of the Army? 

Mr. President, there are two ways in which the provision in 
the Constitution conferring upon 'the President of the United 
States and the Senate the power to make treaties can be absolutely 
nullified. One is the manner I have suggested, by Congress openly 
and boldly assuming to make a treaty; and if constitutional re- 
strictions are not to be respected, if no man is bound by the Con- 
stitution, if a Senator or a Representative, because forsooth he 
inay be in the majority can effect his purpose by overriding the 
Constitution and disregarding it, then that is the simplest way to 
do it. There is still another way in which this provision in the 
Constitution can be nullified, and that is by undertaking to put 
into the form of a statute that which in reality is a treaty. Now, 
one method is just as effective as the other, and either method is 
as absolutely illegal as the other. 
arm 



Before goinj? further in that line of argument, in order that I 
may^have the attention of Senators and that thev may not think 
there is an answer which I do not recognize. I desire to say that 
I of course fully understand the argument which is made in reply 
that the State of Texas was admitted in tliis way. I can not stop 
to interrupt the thread of the argument at the present point to 
show that that reply is not a good one. Not to elaborate it fur- 
ther, I will merely state that it is the distinction between the au- 
thority of Congress to admit a State, to do wiiich it is given the 
power in words in the Constitution, and the power to ac(ii;ire for- 
eign territory not for the purpose of making it a State, which, as 
I shall endeavor to show, is essentialh'and necessarily the subject- 
matter of treat}- between two governments. 

Mr. President, when the framers of the Constitution put the 
word "treaties" into the Constitution without any other defining 
words or without any limitation, is it to be supposed for a moment 
that they did not recognize the fact that the term "treaties" had 
a distinct, legitimate, necessary, well-understood meaning? Is it 
to be supposed that they for one moment contemplated that when 
the question came up whether a certain measure which involved 
a negotiation and agreement between this country and another 
should l,e accomplished in the way it provided, through a treaty 
by the President and the Senate, or whether it should be remitted 
to Congress, that the question of the form of the measure would 
control? 

Is it to be supposed for a moment that they supposed that that 
which is essentially a treaty, and which they had provided should 
be made only by tlie President and the Senate, would be by any 
species of legislative legerdemain converted into the form of a 
statute, and another power or department of the Government, 
which had had distinct powers conferred ujion it and which liad 
been denied this power, would usurp it and that its usurpation 
would be recognized? 

Mr. ELKINS. Will the Senator from Georgia allow me to in- 
terrupt him? 

Mr. BACON. Certainly. 

Mr. ELKINS. Does the Senator admit now that Congress can 
admit a State into the Union? 

Mr. BACON. Undoiibtedlv. 

Mr. ELKINS. And it adm'itted Texas? 

Mr. BACON. Yes; but I will say to the Senator that I am com- 
ing to the distinct discussion of that branch of the case. 

Mr. ELKINS. I merely want to put this (luestion 

Mr. BACON. And I would be very glad if the Senator would 
pretermit the question until I reach that ])oint, and I shall be 
very happy at that time to take it up. I am now discussing an- 
other line. I am coming to the question of tiie power to admit 
States, and that will be the time for the {jucstion. 

Mx". ELKINS. Having it in mind now, I sliould like to ask why, 
if it can admit a State, it can not admit anything less than a State; 
something that is not a State? 

Mr. BACON. I am coming to that, and would be very glad if 
the Senator would repeat his question if I do not answer it before 
I get through, because 1 do the Senator the justice to say tliat I 
believe if I can possibly satisfy him of tlio unconstitutionality of 
the joint resolution lie will not vote for it, however much he may 
desire the anne.xatiou of Hawaii. It is true I am very much dis- 

3oU5 



8 

courap;ed by the fact that the Senator said to me, in private con- 
versation, when I asked him if he was bound by the Constitution, 
yes, as he interpreted it. 

JMr. ELKINiS. No; now tell the v.-hole of it. I beg the Sena- 
tor's pardoji. I said as the Supreme Court of the United States 
interpreted it and as I interpreted it. 

Mr. BACON. Very well. 

Mr. ELKINS. And not as the Senator interpreted it. 

Mr. TELLER. Will the Senator from Georgia allow me? 

Mr. BACON. Let me answer the Senator from West Virginia 
first. If the Senator from West Virginia will stand to that prop- 
osition, I Avill jjromise to show him a decision of the Supreme 
Court of the United States which says that the United States Grov- 
emnient has no right— I do not go so far as the Supreme Court go 
in this particTilar, and I am merely stating this for the benefit of 
the Senator from West Virginia— to annex territory which it does 
not intend to make into a State, and Senators themselves say they 
do not intend to make a State of Hawaii. 

Mr. ELKINS. You can not state what will be the intention of 
the Government a hundred years from now. 

Mr. BACON. I am not puttmg it on that ground at all. Now 
I yield to the Senator from Colorado. 

Mr. TELLEE. The position of the Senator from West Virginia 
is good Democratic doctrine, a doctrine which old Jackson pressed 
on the country with great force, that every Senator and every 
Representativecould construe the Constitution as he understood it. 

Mr. BACON. Of course. 

Mr. TELLER. And it was his duty not to look to the Supreme 
Court of the United States, but to hisown judgment and conscience 
in these matters. 

Mr. BACON. I am perfectly satisfied if that shall be the rule. 
I was discouraged by the fact that the manner of the reply of the 
Senator from West Virginia indicated that he would not be con- 
trolled by what some of the more distinctive lawyer members of 
the Senate might consider to be the law. He was going to take it 
into his own hands. 

But to return, I am coming to a discussion of the question, to 
which I ask the attention of Senators, as to what the framers of 
the Constitution meant when they said "treaties" and what they 
must necessarily have meant. I asked the question whether it was 
possible that the framers of the Constitution when they imt the 
word "'treaties" into the Constitution in this connection under- 
stood that it simply meant an agreement or a negotiation piit in 
a certain form, and that if it were not put in that certain form, 
it could be refined away and the exercise of the function could be 
usurped by Congress which had been denied the right to make a 
treaty. I had asked that question when the Senator from West 
Virginia interrupted me. 

Now, Mr. President, has the word " treaty " a definite, well-fixed 
meaning? Is a treaty only that which is put in the form of a treaty 
as we usually see it when submitted to the Senate on the part of the 
President, or does a treaty mean a certain thing regardless of the 
form? I say the latter. The distinction between a statute and a 
treaty does not depend on the form. A statute may be in various 
forms. It may be in the ordinary form of a statute or in the form 
of a joint resolution. One has the same effect as the other. A 
treaty dejiends for the fact that it is a treaty according to the sub- 
stance of it and what it proposes to accomplish. 
3505 



Now, a statute is this: A statute is a rule of conduct laid down 
by the legislative department, which has its effect upon all of those 
within the jurisdiction. In other words, a statute passed by the 
Congress of the United States is obligatory upon every person who 
is a citizen of the United States or a resident therein. A statute 
can not go outside the jurisdiction of the United States and be 
binding upon the subjects of another power. It takes the consent 
of the subjects of the other power, speaking or giving their con- 
gent through their duly authorized government, to be bound by a 
certain thing which is enacted in this country; and therein comes 
the necessity for a treaty. 

A treaty is that which is binding upon the people of two coun- 
tries by mutual agreement that it shall be binding upon the two 
countries. A treaty is bimling on two countries because the au- 
thority in each country undertakes that it shall be binding in its 
particular country, and that is the essential element and feature 
of a treaty, that it is binding on two countries because the au- 
thority wliich makes it binding is the particular authority in each 
country, not having a general authority over both. 

If it were practicable for a statute to be made obligatory upon 
the citizens of another country, there would be no need of a treaty. 
We could simply enact what we wanted, and the people in the 
other countrv would have to obey. But as we can not do it, we 
have to invoke the consent of the people or the authority in that 
other country that they will also be bound by the same law, and 
that makes a treaty. 

Now, Mr. President, I repeat possibly, but I desire to state it m 
another shape, that the distinction between a treaty and a statute 
is this: The statute affects only the people within the jurisdiction 
of the authority by Avhich it is enacted. There is no consent re- 
quired on the part of those who are subject to such a statute. It 
is made obligatory upon them by the authority of those who 
enact it. 

A treaty, on the other hand, is something which involves nego- 
tiation with another country. It requires the consent of the duly 
authorized department in this GoYernment, and it also requires 
that they shall negotiate and obtain the consent of the power in 
the other Government. This is stated with very great clearness 
in a report made by the Senate Committee on Foreign Relations 
in 1844—1 have forgotten the number of the Congress— when 
it had under consideration the Texas resolutions. I will read 
it. This is a definition of a treaty. I read from Senate Docu- 
ments, volume 3, 1844 and 1845. It is broken up so that the pages 
can not be told, as the documents are bound together, but it is 
Document No. 79, page 5 thereof; not the page of the volume. 

But let it be rememberecl 

And I ask the attention of Senators now to this definition of a 
treat}' — 

on the other liand, that iilthough this treaty only arts for other powers 
and in the sini,'ular sphere of exterior concerns, within this sphere no ottior 
power has privileso to intrude; the domain is all its own; in a property ex- 
clusive. If the affair to bo accomplished bo exterior and requiro the inter- 
vention of compact to accomplish it, hero with the treaty-making power is 
the office, and sole office, to accomplish it. No other power has privilege to 
touch. 

I do not know whether or not I make my distinction clear, but 
the framers of the Constitution bad in view certain actions by 
this Government when they set up a distinct and separate de- 
partment of Government for the making of treaties and when 

3505 



10 

they conferred upon that department exclusive power to make 
treaties; and I sng.u;est and urge as the crucial feature in this con- 
sideration tiiat tlie framers of the Constitution necessarily, when 
they said that the President sliould have the power to make trea- 
ties", with tlie consent of the Senate, meant to put within that de- 
partment the power to conduct all negotiations between this 
countr}^ and another country, and to come to any agreement with 
that other country as to what should bo a rule of conduct between 
them. 

If that be true, necessarily everything which is of that nature, 
everything which can be that and nothing else, iniist be the sub- 
ject-matter of a treaty. If not, as I have said before, the framers 
of the Constitution made a great mistake when they unnecessarily 
jiut into the Constitution this machinery by which the power was 
conferred upon the President of the United States, by and with the 
advice and consent of tlie Senate, to make treaties. 

Mr. President, I said that it was within the power of Congress 
to nullify this provision of the Constitution in two ways, either 
by directly making a treaty witli another foreign Government or 
by putting into the shape of a statute that which in reality is a 
treaty. Let me illustrate as to the latter, because that is what is 
attempted to be done here now. The attempt here is to make a 
treaty by statute. The treaty, as I understand it, which was pro- 
posed and negotiated by the President of the United States with 
the authority of Hawaii, and all the reports in connection with it 
have been made public, so that I can with propriety speak of 
them liere. 

A treaty was negotiated between the President of the United 
States and the Hawaiian Government. Why did the President 
of the United States and the Hawaiian Government negotiate a 
treaty for the annexation of those islands? I hope Senators who 
are considering this question and who propose to answer it will 
consider this particular featui-e of it. Why did the President of 
the United States negotiate with the Hawaiian Government by 
means of a treaty for the annexation of those islands except that 
the President of the United States and the authorities of the 
Hawaiian Islands recognized that it was the proper subject- 
matter of a treaty? 

Why did the Senate of the United States, when the President 
submitted the treaty here, undertake to consider it and to give its 
consent to the treaty which had been negotiated between the 
President of the United States and the Hawaiian authorities? 
Why was it that it did not return it to the President and say 
"This is not the subject-matter of a treaty, and we should not be 
asked for our advice or consent?" Simply because of the fact 
that the Senate of the United States, without exception, regard- 
less of what the opinion of any Senator might bo on the merits, 
recognized that it was the proper subject-matter of a treaty. 

Aside from this direct recognition it comes within the general 
definition of that which must be a treaty. It is to accomplish 
something which can not be accomplished by the unaided act of 
the United States. It is to accomplish something which repiires 
uot only the consent of the United States, but the consent of 
Hawaii, a7id therefore must be in its essence and in its character 
a treaty. And yet. Mr. President, as I have said, in the joint res- 
olution now bolore the Senate there is an effort made to nullify 
this provision in the Constitution in the second of the methods 
ai05 



11 

which I suggested, to wit. in the method of putting in the form 
of a statute that which of necessity can be nothing else but the 
subject-matter of a treaty. 

Mr. WHITE. If the Senator from Georgia will permit me, in 
line with the point he is making, it may be that the ti-eaty was 
suggested because of the provision of the Hawaiian constitution, 
found in the thirty-second article of that instrument, which pro- 
vides specifically for annexation to the United States by treaty, 
which treaty, of course, has never been made. 

Mr. BACON. I understand that. I have no doubt that point 
will be fully brought out by the Senators who discuss the merits 
of the question. 

What is it that the House of Representatives has done? And I 
say the House of Representatives, not in any spirit of criticism of 
it particularly, because the Senate, through its Foreign Relations 
Committee, had previously proposed the same thing. Here was 
the case of a treaty, which was not only recognized "by both par- 
ties as a treaty and acted upon by both parties as a treaty, but 
which, in its essence, must of necessity be a treaty, which was 
practically abandoned in the Senate for the reason that in the 
manner and the method pointed out by the Constitution it could 
not be made law. The framers of the Constitution, in their wis- 
dom, had provided that the Pi-esident of the United States should 
make a treaty if tvv^o-thirds of the Senators present concurred in it. 

Now, whether wise or unwise, that is the law. If only a ma- 
jority concur, the treaty can not be made. Therefore the effect 
of the failure in the Senate to ratify that treaty was the same as 
the failure of an attempted passage of a statute law. The friends 
of annexation, seeing that it was impossible to make this treaty in 
the manner pointed out by the Constitution, attempted then to 
nullify the provision in the Constitution by putting that treaty in 
the form of a statute, and here we have embodied the provisions 
of the treaty in the joint resolution which comes to us from the 
House. 

I will state the object I have in calling attention to this point. 
It is perfectly within the power of Congress— and when I speak of 
Congress in this discussion I mean the lawmaking power— if it 
has a majority in each House, if it can pursue the method legally 
which is sought to be pursued here, it is perfectly within the 
power of Congress not only to nullify and destroy that provision 
in the Federal Constitution, but to effect by statute any treaty 
that can not command a two-thirds vote in the Senate. 

Mr. TELLER. I should like to ask the Senator if he thinks 
there is any treaty that we can not annul by a direct act of Con- 
gress? 

Mr. BACON. I do not. I have so stated already. But I ask 
the learned Senator 

Mr. TELLER. Then the legislative power can not be inferior 
to the treaty-making power. 

Mr. BACON. The learned Senator has certainly not read the 
decisions of the Supreme Court on this subject. 

Mr. TELLER. I have. 

Mr. BACON. The law on the subject is not in doubt. I have 
stated it already. The Senator probably did not hear it when I 
first began. 

Mr. TELLER. Yes, I did. 

Mr. BACON. It was that the Supreme Court have decided 

3o0o 



12 

that a treaty and a statute were each supreme, and tbat when 
they came in conflict the latter woiild prevail as being of a later 
date; in other words, that a statute may be set aside by a treaty, 
and a treaty may be set aside bj^ a statute. 

Mr. TELLER. I ask the Senator if that is not simply a recog- 
nition of the statutory right to annul a treaty. We have done 
that repeatedly. It has been discussed here for daj's. 

Mr. EJAC'ON. Nobody disputes that. And in the same way a 
statute can be annulled by a treaty. 

Mr. TELLER. I recall that the Senator from Oregon not now 
here. Mr. Mitchell, made perhaps a lialf day's argument on that 
subject to show by the authorities and by argument the absolute 
control of the legislative department over any treaty that might 
be made. 

Mr. BACON. The Senator and myself are not differing upon 
that point. I had announced that before he interru[)ted ine. I 
say that a treaty may be annulled by a statute, and I say also 
that a statute may be annulled by a treaty. Now, the point I 
want to call the Senator's attention to is that wliile a statute has 
the power to annul a treaty, and while a treaty has the power to 
annul a statute, neither one of them has the power to usurp the 
functions of the other. Let the Senator point out, if he can. any 
authority for that. In other words, while a treaty made by the 
President and Senate can be annulled by an act of Congress, 
that does not imply that the treaty itself can be made by act of 
Congress. They are two very different things. It can set the 
treaty aside, but it can not create a treaty. 

Mr. TELLER. That is right. 

Mr. BACON. That is right, the Senator says, and I am glad 
that we have gotten now on common ground." It can annul, it 
can destroy, but it can not create. Now, the point I want to call 
the attention of the Senator and the attention of the Senate to is, 
that if the joint resolution under consideration is constitutional, 
it is within the power of Congress by such a joint resolution to 
create a treaty. 

Mr. TELLER. There is just where the contention come? in. 

Mr. BACON. Of course; and I want to try to prove it, if the 
Senator will permit me. 

Mr. TELLER. I say it is no assertion of the treaty-making 
power, but clearly the legislative power. I want to call the 
attention of the Senator to another point, if he will allow me. 
He has spoken of this treaty not having been ratified by the 
Senate. He must remember very well that when the attempt 
was made to annex Texas to this country it absolutely failed. 
The Senate voted the treaty down and declared that they would 
not have the treaty. 

Mr. BACON. I am coming to that. I will read to the Sena- 
tor all about that before I get thi-ough. 

Mr. WHITE. Congress did not rely upon a treaty. They did 
not consider it to be of any etl'ect. 

l\Ir. TELLER. Of course; they voted it down. 

Mr. WHITE. You rely upon the treat}' here. 

Mr. TELLER. We do not. 

Mr. BACON. 1 hope I may have the judicial ear of the Senator, 
not his controversial ear. I hope I may have the judicial ear of 
the Senator, because I wish to suggest, so far as I ani able, a logical 
presentation of this matter. The Senator comes to the conclusion 



13 

with me that while Congress in its lawmaking capacity may de- 
stroy a treaty, it can not make a treaty. The Senator admits ithati. 
Mr. TELLER. I do not want the Senator to understand that 
he has first put that idea in my mind. 
Mr. BACON. Oh, no; by no means. 

Mr. TELLER. I have not come to that conclusion from any- 
thmg in the Senator's argument. That is one of the things that 
I think every ordinary lawyer in this body would recognize. 

Mr. BACON. Well, I am not claiming any very great origi- 
nality m this matter, I am simply trying to suggest a view of it, 
and, I hope, with becoming modesty; and I am not assuming to 
be suggesting anything which the Senator did not know before. 
I am sorry, I say, that there is this contraversial spirit, because I 
was m hopes we might have a judicial consideration of this ques- 
tion. If, therefore, not by reason of my argument, but by reason 
of a fundamental principle which every ordinary lawyer recog- 
nizes, it be true that Congress can not by statute make a treaty, 
then if this procedure is one by which Congress does make a treaty 
there is no answer to the proposition that it is unconstitutional. I 
propose to show that by this process Congress does make a treaty; 
and when Congress assumes to make a treatv, I sav it violates the 
Constitution, and not only so, but it strikes a blow at one of the 
fundamental and most important prerogatives of the President of 
the United States and also of the Senate. 

Now, why do I say that if this method can be proceeded with 
successfully it does put within the power of Congress the oppor- 
tunity to make a treaty? I will have to repeat a little in order to 
show it, because of the interruptions, to which I do not object. 
I have called attention to the fact that here was the subject-matter 
of a ti-eaty. It was a negotiation between this Government and 
another government. It was something which could not be made 
effective by the independent action of this Government. 

It was something which required the action of this Government 
and the reciprocal action of another government. And I say, rec- 
ognizing that to be a necessity, the President of the United States 
and the Hawaiian authorities had, for the purpose of effecting it, 
entered into a negotiation and had come to an agreement to make 
a treaty; that, recognizing it as a proper subject-matter of a treatv, 
in obedience to the commands of the Constitution of the United 
States, the President sent the treaty to this body; and that this body, 
composed as it is nine-tenths of lawyers, and some of them very 
great lawyers, recognized it as a proper subject-matter of a treaty 
and considered it for weeks and months as a treaty; whereas if it 
had not been the subject-matter properly of a treaty they would 
have refused to consider it; and that b-cause of the fact that 
they could not command the two-thirds majority required by 
the Constitution the treaty was abandoned, and the same treaty, 
word for word, is embodied in a joint resolution passed by the 
House of Representatives, and it comes here and we are asked that 
we shall pas.s it; and that that which would have been law as a 
treaty if it could have commanded two-thirds majority in this 
body, shall now become law in the absence of two-thirds bv virtue 
of a majority vote in the House and the Senate, which is only 
required for a statute, and which is not sufficient for a treatv. 

Now, Mr. President, if that is effected, if the joint resolution 
which has passed the House passes the Senate an<l receives the 
approval of the President, what has become lawV The treaty? 
3505 



14 

Yes, the treatj' which could not command two-thirds A^ote here 
has, if it passes the Senate, become a law. "Where is the answer 
to the proposition that by so doing the Congress of the United 
States has made a treaty in totidem verbis the same as the treaty 
which could not get a two-thirds vote in tlie Senate? 

Now, Mr. President, that is not the only illustration. What is 
sought to be done in this case can be done in any other case. We 
liad before this body during two Congresses, the last Congress 
a;id a part of this, a treaty with (xreat Britain known as the arbi- 
tration treaty, from which also the injunction of secrecy has been 
taken so far as the treaty itself is concerned and the fact that it 
was rejected ])y this body. 

What prohibited tlie House of Representatives from taking that 
treaty and embodying it in a joint resolution, copying it word for 
word, and sending it to the Senate; and if this joint resolution, by 
receiving a majority vote of the two Houses, can become a law, 
what would have prevented the arbitration treaty from becoming 
a law when it had a majority vote in the House and the Senate, if it 
had been embodied in a joint resolution and had been approved by 
the President? Would not that have been making a treaty? Is 
there any other treaty which can be conceived of which, although 
it has been rejected by the Senate, still, if it once had the assent 
of the foreign power, could not be made into law in this country 
by an act of Congress by copying it into a ))ill or joint resolution? 
'Mr. HOAR. Would it disturb the Senator if I should ask him 
a question? 

IMr. BACON. Not in the least. 

Mr. HOAR. It seems to me to touch the point of his entire 
argument. Perhaps he will allow me to follow my question with 
a single illustration, so that it may be understood. I shall not 
take sixty seconds in doing so. 

Is not the essence of a treaty the incurring an obligation to a 
foreign nation? Therefore, if we choose to make a bargain with a 
foreign state that we will annex it in future, that may be done by 
a treaty concurring in the obligation to a foreign nation. Biit if 
we strip it of all that and incur no obligation whatever to any 
foreign nation, but only pass an act that a certain Territory shall 
come into the Union, it is only oi)erated upon; it conies in by its 
consent, as a domestic transacjtion. 

Mr. BACON. The Senator is speaking of the admission of a' 
State? 

Mr. HOAR. I will say Territory, which is the same thing. I 
mean the admission of territory under our control. I do not speak 
of annexing it to the United States. Let me repeat. I shall not 
take any time. Is it not the essence of a treaty, the incurring of 
an obligation to a foreign country? And therefore, although the 
taking of territory under our dominion, not as a State, might be 
accomplished by incurring an obligation to a foreign country to 
do it. if it can be done without that obligation, by a mere legis- 
lative act. is not that valid legislation? 

Mr. BACON. I say the rule is very much broader than that 
stated by the Senator. It is not simply the question of incurring 
an obligation; it is the making of any agreement. It is an agree- 
7nent by which bej'ond the jurisdiction of a statute in this coun- 
try something is made lawful in another country; and whenever 
it involves the absolute abnegation of authority in the foreign 
country and the putting it under the authority of this country, 
;<j'j5 



15 

that is certainly a most fundamental and vital agreement between 
the two. 

Mr. President, we could not annex Hawaii by a statute or bj- a 
joint resolution if Hawaii had not consented. It would be brutum 
fulmen unless we proposed to enforce it by war. We can only 
annex Hawaii by a joint resolution or a statute in case Hawaii 
has herself assented to it. Therefore it involves a feature of ne- 
gotiation, and necessarily the feature of agreement. Whenever 
you have the feature of negotiation. and of agreement you have 
the essential characteristics and (lualitics of a treaty, and when- 
ever you have a treaty you have that which the Constitution says 
must be made in a particular way and which can not be made in 
another way. 

]\Ir. HOAR. Take the case of Texas. 

Mr. BACON. I will come to that. If I do not diifercntiate 
Texas from this case. I will give up the question. 

Mr. PLATT of Connecticut. Will the Senator permit me? 

IMr. BACON. Certainly. 

Mr. PLATT of Counecticiit. The Senator seems to think that 
there can be no acquisition of territory without a treaty or by war. 

Mr. BACON. Yes, or by war. 

Mr. PLATT of Connecticut. Suppose that, as on a former oc- 
casion, without any previous negotiation whatever, Hawaii had 
made a cession of her territory and sovereignty to the United 
States, does the Senator hold that Congress could not accept that? 

Mr. BACON. Most undoubtedly; it would reqiiire the treaty- 
making power to do it. 

Mr. SPOONER. Will the Senator allow me to ask a question? 

Mr. BACON. Certainly. 

Mr. SPOONER. Only for information. The first line of the 
joint resolution reads as follows: 

That said cession 

Mr. BACON. I have the joint resolution in my hand for the 
purpose of reading that clause, but I am very glad to have the 
Senator read it. 

Mr. SPOONER. Very well. 

Mr. BACON. No; go on. I insist that you go on. 

Mr. SPOONER. It reads: 

Tliat said cession is accepted, ratified, and confirmed. 

Mr. PLATT of Connecticut. I am not disciissing this question. 

Mr. SPOONER. In other words, has there been any attempted 
cession 

Mr. PLATT of Connecticut. I am not discussing that. 

Mr. SPOONER. I have not finished my questson. Has there 
been any attempted cession except by treaty? I understand my 
friend from Georgia is arguing the question whether Congress 
has the power to accept, ratify, and confirm a cession made by 
treatv not ratified by the Senate? 

Mr". BACON. Yes, sir. 

Mr. PLATT of Connecticut. I am not as familiar with what 
has been done as the Committee on Foreign Relations, but I un- 
derstand that there has been an offer to cede. 

Mr. SPOONER. An otter to cede is not a cession. 

Mr. PLATT of Connecticut. One moment. I was not discuss- 
ing this case particularly, but I was asking a question which, as 
3oOG 



16 

it seemed to mo, went to the whole argument of the Senator from 
Georgia, wlicther if there should have been an actual cession 
without any previous negotiation on the part of the United States 
we could not accept that without making a treat}-? 

Mr. FORAKER. IMr. President 

Mr. BACON. I will answer the Senator from Connecticut, hut 
I yield to the Senator from Ohio. 

Mr. FORAKER. I am loath to interrupt the Senator, but I have 
been desiring for some minutes since ho got on this proposition to 
put a question to him. The question I desire to ptit is this: 
Would it not l;e competent for the Congress of the United States 
to prescribe by law certain terms and conditions upon which any 
independent government might come in and become a part of the 
territory of the United States by complying with the terms and 
conditions prescribed by the Congress of the United States? 

Suppose, for instance, to make plain what I have in my mind, 
we should provide that any independent people or government, 
doing what this preamble recites the people of Hawaii have done, 
should, upon complying with certain conditions, those and others 
that we might see fitto make, become a part of our territory, 
they notifying us that they had comx>lied with all the terms and 
conditions, could we not thereupon declare them to be annexed 
and make them a part of the territory of the United States, and 
would not that be a more competent power for the Congress than 
it would be for the treaty -making power? 

Mr. BACON. You can do that if you absolutely nullify the 
provision of tlie Constitution which says that a treaty shall bo 
made in another way. 

Mr. FoKAKER rose. 

Mr. BxVCON. Now. if the Senator will pardon me. 

Mr. FORAKER. If the Senator will allow me just one word 
further. I agree with almost all he has said; but at the point 
where I differ from him the difference becomes vital. I think 
that when you make a compact with a foreign jiower it must be 
in the natiiVe of a treaty, but that contemplates the continued ex- 
istence of the foreign power. Therefore, if a foreign power were 
by agreement to cede to us a part of its territory upon certain 
terms and conditions agreed upon, it would necessarily have to 
be done by treaty. 

But where the whole foreign country comes in and ceases to be 
an independent power, as is proposed in this case, it is not prop- 
erly done by treaty, or at least not so properly l)y a treaty, I will 
put it. as by an act of Congress in the nature of legislation. That 
was the case with Texas. She had ceased to be a part of Mexico; 
she had acquired her independence; she was an independent Re- 
public: she had a right to stipulate for herself, and she stipulated, 
among other things, that she would cease to be as an independent 
power, and therefore she could accept a treaty or she coukl come 
in by the door of legislation. While the treaty-making power 
might l;e properly invoked, this other power is equally so. 

Mr. BACON. i\Ir. President, I am endeavoring to present with 
some degree of sequence, if possible, an argument. It is mani- 
festly impossible for me to do so if I am interrupted by Senators, 
not for the purpose of a question, btit for purposes of inter.iecting 
arguments. I do not think I can be accused of being unwilling to 
have interru])tions, but I will ask Senators to permit me to pursue 
the argument with some degree of continuity, and when 1 have 
3rm 



17 

reached a stopping place at any particular division I shall be mora 
than happy to yield for any question Senators may wish to ask. 

Mr. FORAKER. I hope the Senator will not think that I was 
undertaking to do more tiian make plain to him wliat was in my 
mind. 

Mr. BACON. The Senator's interruption was very much less 
than that of some others. 

Mr. FORAKER. I wished the Senator to know while he was 
on the floor what I had in mind. 

Mr. BACON. The Senator from Ohio makes a verv important 
concession, and if he stands by that I think he will be bound to 
vote against this joint resolution. Tlie Senator from Ohio con- 
cedes that if the purpose were to cede to this Government a ])art 
of the territory of another government it must necessarily be in 
the form of a treaty, but that if the purpose is to cede the entire 
coimtry a treaty is not necessary. 

Mr. President, I am utterly unable to see the force of that ar- 
gument. It is in either case an agreement by which sovereignty 
existing over certain territory is abandoned, or rather annulled, 
and by which the sovereignty of this country is given to it. Why 
should the change of sovereignty as to a part be the subject-matter 
of negotiation and the change of sovereignty as to the whole be 
not the subject-matter of negotiation? 

Mr. FORAKER. In a word I can answer that. Because there 
is no continuance of a compact. The whole thing is at an end by 
its consummation. 

Mr. BACON. I do not agree with the Senator, for this reason: 
The vital essence by which this agreement is made binding is not 
that anything is enacted in this country which can have force 
there, but it is because by an agreement in consideration that it 
shall have force there we say it shall have force here. 

But, Mr. President, I was on a practical point, and I want the 
consideration of Senators to it. The Constitution has clothed us 
with the high function, in conjunction with the President, of 
making a certain class of laws, which the Constitution says shall 
be supreme, to wit, treaties. Now, if this joint resolution can be 
legally passed, constitutionally passed, I submit the proposition as 
one which can not be successfully answered, that there is no treaty 
rejected by the Senate because of a lack of two-thirds vote, if the 
foreign government had given its assent thereto, as it has done here, 
or as it did in the arbitration treaty, which could not be made 
law by the enactment of a statute in the Houi-eof Representatives 
and in the Senate and by it being signed by the President. I see 
the Senator from Colorado assents to that. 

Mr. TELLER. 1 do not know that I assent to it: but I do not 
think that the fact that that can be done is anv argument. 

Mr. BACON. That may be. We shall see whether it is an ar- 
gument or not. But. Mr. President, I want to say to Senators, if 
there is any treaty which could be entered into between the Presi- 
dent and a foreign government, which, wlien it failed to receive a 
two-thirds vote in the Senate, could not bo mule law by tliis 
process, although it could not command a two-thirds vote in the 
Senate, I want Senators to point it out. If there is anv trcatv 
which can be devised which can not command a two-thirds vdte 
in the Senate, which can command a majority in the Senate, which 
can not be made a law by this procc.-^s, Iwant Senators to suagest 
what that treaty is. 



18 

What does that lead ns to, Mr, President? If it be true that 
whenever a treaty fails to get two-thirds majority in the Senate, 
but can command a majority here and also command a majority 
in the House of Representatives and command the approval of 
the President— if it be true that such a treaty, although it can not 
be enacted or made in the v^^ay the Constitution provides, can be 
made in the way of putting it in the form of a statute or of a joint 
resolution, do we not, when we give our assent to such a proposi- 
tion, absolutely surrender the power which the Constitution con- 
fers upon us for the making of treaties? 

Mr. President, what does that load to? The Senator from Colo- 
rado said he did not know that that would be any argument 
against the proposition. It leads to this: The President of the 
United States is the Executive, clothed with the power to make 
treaties. It can not possibly be denied that it was the contempla- 
tion of the Constitution that no treaty should be made which was 
not initiated by him. Is there any denial of that proposition? If 
so, let Senators, when they come to speak, answer it. It was the 
design of the Constitution that every treaty should be made by 
the President and should be initiated by him, and it was the de- 
sign of the Constitution and the command of the Constitution that 
there should be no treaty which did not have his approval; and 
yet, if this can be done, the House of Representatives can orig- 
inate a treaty. 

The House of Representatives, when England, for instance, has 
signified her assent by an act of Parliament, or in any other way, 
can pass a joint resolution sa5ang there shall be such and such an 
agreement between this country and another country. It can pass 
the House of Representatives; it can come to the Senate: it can 
receive a majority of each; and it can go to the President and re- 
ceive his disapproval. It can go back to the House of Representa- 
tives and get two-tliirds in that body, and come to this body and 
get two-thirds in this body, and we have a treaty absolutely over 
and above the consent of the President. 

Do not let Senators conf iise this proi^osition. It can not be said 
that at last it would rest with the President wliether he would 
proclaim that treaty, because, if this form is adopted, it becomes 
law, and law binds the President as well as everj'body else. 
Whenever he disapproves it, and it is ])assed by a two- thirds vote 
of the House of Representatives and a two-thirds vote of the Sen- 
ate, it is a law which binds him, and it would be an impeachable 
offense in him if he refused to carry it out. 

On the contrary, in the manner prescribed by the Constitution, 
he is part of the treaty-making power. A treaty is not obligatory 
until he himself proclaims it as a treaty. It may be even ratified 
by the Senate and he can withdraw his approval, for there is 
nothing that makes it law until he does proclaim it; but when 
you put it in the form of a joint resolution or a statute it becomes 
law whenever it has what the Constitution says shall be requisite 
to make a law, and it is then as binding on him as on anyone else. 

So I say there is no escape from the proposition that if that which 
in its essential character is a treaty can be enacted in the form of 
a statute or a joint resolution, it is perfectly practicable to have a 
treaty in its essence and substance which the President of the 
United States not oidj' has not initiated, not only has not approved, 
but which he has distinctly disapproved. 

Mr. President, I am defending this great prerogative of the 

3505 



19 

President as well as that of the Senate. His is the principal pre- 
rogative, and the pvoro.i^^alive of the Senate is an incident to it. 
It this precedent can be established, it will return in an evil hour 
to plague the President as well as the Senate. 

]Mr. President, this is a very serious consideration; and it is the 
duty ot all of us to maintain every provision in the Constitution 
It IS doubly the duty of Senators to see that they do not absolutely 
abdicate the power which the Constitution confers on the Senate- 
and I can not, for tlie life of me, see any escape from the argu- 
ment that, if this method is constitutional, then, wherever the 
assent of a foreign government can be gotten in another way, 
practically a treaty can be made without the consent of two-thirds 
of this bod}\ 

Mr. President, I want to read what a great man said on this 
subject. It IS not simply the fact that we abdicate our power- it 
IS not Simply the fact that we fail to maintain the authority which 
the_ Constitution gives us; it is the fact that if we permit that 
which is m substance a treaty to be enacted bv anything less than 
two-thirds in this body, we violate a great ]n-inciple of the Consti- 
tution and we violate the rights of the States stipulated for when 
they entered the Federal Union. 

I propose to read what George Washington said about it The 
House of Representatives called upon President Washington in 
1796 to lay before the House copies of instructions to the ministers 
ot the United States who had negotiated a treaty with Great 
Britain, and the President, replying to the House of Representa- 
tives, asserts the power of the President and of the Senate to the 
exclusive control of all matters which are treaties, and gives the 
reasons for it. I read from the first volume of Messages and Pa- 
pers of the Presidents, by Richardson, page 194: 

United States, March jo, UOG. 
To the House of Rei)rcsentaiives of the United States: 

, With the utmost attention I have considered your resolution of the 24th 
instant, requesting mo to lay before your House a copy of the instructions to 
the minister of the Lnitcd States who negotiated the treaty with the King 
ot Great Bntaui, together with the correspondenee and other documents 
relative tc5 that treaty, excepting such of the said papers as any existing 
negotiation may render improper to bo disclosed. Jo 

In deliberating upon this suoject it was impossible for me to lose sight of 
the principle which some have avowed in it.s discussion, or to avoid extendine 
my views to the consequences which must flow from the admission of that 

The very principle now under discussion. 

I trust that no part of my conduct has ever indicated a disposition to with- 
hold any information which the Constitution has enioinod upon the Presi- 
dent as a duty to give or which could bo rci|uin,Ml of him by either House of 
Congress .as a right; and with truth I aihrm that it has been, as it will con- 
tinue to bo while 1 have the honor to preside in the Government, my con- 
stant endeavor to harmonize with the other branches ther.-of so far .as the 
trust delegated to me by the people of the United States and my sense of tho 
wni^KM-mt ""^'°^'^^ to '■ preserve, protect, and defend tho Constitution " 

The nature of foreign negotiations requires caution, and their succc.-w 
must often depend on secrecy; ;uid even when brought to a c.nclusion a full 
disclosure ot all the measures, demands, or eventual concessions which mav 
have been propcsed or contemplated would be extremely impolitic, for this 
might have a pernicious influence on future n(>gotiations"or i)rodnce immedi- 
ate inconvcnieiK-os, perhaps danger and mischief, in relation to other powers 
, Ihe necessity of such caution and secrecy was one cogent reas,)n for vest- 
ing tho power of m.aking treaties in the President, with the advice and con- 
t!^ !. J. \\'' •^'-'";'*''' tj"' l"'","-il'lo on whi.-h that body was formed confining it 
to a small number of members. To admit, then, a right in the Hou.se of Rep- 
resentativos to demand and to have, as u matter of course, all the i)anei-s re- 
3505 



20 

spectingr a negotiation witli a foreign power would be to establish a danger- 
ous precedent. ^ , , , , , , . 

It does not occur that the inspection of the papers asked for can berehitivo 
to any purpose under the cognizance of the House of Representatives, ex- 
coi)t that of an impeachment, which the resolution has not expressed. 1 
repeat that I have no disposition to withhold any information which the 
duty of my station will permit or the public good shall require to bo dis- 
closed; and, in fact, all the papers affecting the negotiation with Great Brit- 
ain were laid before the Senate when the treaty itself was communicated 
for their consideration and advice. 

Mr. President,! ask the attention of every Senator to what I am 
now about to read, becanse that which is to follow is that which 
I had in view when 1 proposed to read this communication to the 
Senate: 

The course which thedobate hastakon on the resolution of the House leads 
to Komo observations on the mode of making treaties under the Constitution 
of the United States. 

Having been a member of the general convention, and knowing the prin- 
ciples on which the Constitution was formed, 1 have ever entertained but 
one opinion on this subject: and from the first establishment of the Govern- 
ment to this moment my conduct has exemplified that opinion— that the 
)iower of making treaties"is exclusively vested in the President, by and with 
the advice and consent of the Senate, provided two-thirds of the Senators 
pre.sent concur; and that every treaty so made and promulgated thencefor- 
ward became the law of the land. 

It is thus that the treaty-making power has been understood by foreign 
nations, and in all the treaties made with them we have declared and they 
have believed that, when ratified by the President, with the advice and con- 
sent of the Senate, they became obligatory. In this construction of the 
Constitution, every House of Representatives has heretofore acquiesced, and 
until the present time not a doubt or suspicion has appeared, to my knowl- 
edge, that this construction was not the true one. Nay, they have more than 
acquiesced; for till now, without controverting the obligation of such treat- 
ies, they have made all the requisite provisions for carrying them into effect. 

There is also reason to believe that this construction agrees with the opin- 
ions entertained by the State conventions when they were deliberating on 
the Constitution, especially by those who objected to it because there was not 
I'cquired in commercial treaties the consent of two-thirds of the whole num- 
ber of the members of the Senate, instead of two-thirds of the Senators pres- 
ent, and because in treaties respecting territorial and certain other rigiits 
and claims the concurrence of three-fourths of the whole number of the 
members of both Houses, respectively, was not made necessary. 

As stated by him, some States objected to the ratification of the 
Constitution 'because when it came to the question of the acqui- 
sition of territory the votes of three-fourths both of the Senate 
and of the House of Representatives were not required. Then he 
goes on to say: 

It is a fact declared by the general convention and universally understood 
that the Constitution of the United States was the result of a spirit of amity 
and mutual concession; and it is well known that under this influence the 
fimaller States were admitted to an equal repre.sentation in the Senate with 
the larger Statng, and that this branch of the Government was invested with 
gi-eat powers, for on the equal participation of those powers the sovereignty 
and political safety of the smaller States were deemed essentially to depend. 

If other proofs than these and the plain letter of the Constitution itself be 
necessary to ascertain the point under consideration, they may be foundin 
the jfiuriials of the general convention, which I have deposited in the office 
of the Department of State. In those journals it will appear that a pronosi- 
tion was made "that no treaty should be binding on the United States which 
was not ratified by a law," and that the proposition was explicitly rejected. 

In other words, it appears by the journals of the convention 
which framed the Constitution of the United States that there 
was a proposition that if the President and the Senate made a 
treaty it should not be binding until an act of Congress approved it, 
and that proposition was explicitly rejected. That is what George 
Washington said about it. 



21 

The concluding sentence is as follows: 

As^ therefore.it is perfe-ctly dear to my iniderstandincj that the assent of 
the House of Representatives is not necessary to the validity of a treaty 
as the treaty with Ureat Britain exhihits in itself all the objects reriuiriiiff 
legislative provision, and on these the pajx-rs called for can throw no lii,'ht 
and as It IS essential to the due administration of the Government tliat tho 
boundaries fixed by the Constitution between tho different departments 
should be preserved, a just regard to the Constitution and to tho duty of mv 
oflice, under all the circumstances of this case, forbids a compliance with 
yoiir request. 

GO. WASHIXGTON. 
Mr. President, I desire that Senators will mark the peculiar 
significance of this utterance by Washington. The distinct ques- 
tion which he was having under consideration was whether tho 
House of Eepresentatives had the right to any consideration 
whatever of the subject-matter of a treatv. They had called oa 
hmi for information with reference to a treaty, and he had stated 
to them, practically, " Jt is none of your business; that is a mat- 
ter which belongs to the President and to the Senate, and does 
not belong to the House of Representatives." 

I confess that I am utterly unable to understand how anvone 
can possibly get away from the proposition which I have submit- 
ted, which is, that if what is here contended for is legal, whenever 
a treaty is rejected by the Senate because it can not get a two-thirds 
vote, and whenever the project can command the assent of a for- 
eign government, a majority of the Senate and a majority of the 
House of Ptepresentatives, with the approval of the President, any 
treaty thus rejected by two-thirds of the Senate can be enacted 
into law. If that is so, the provision in the Constitution which 
gives to the President and two-thirds of the Senate the treaty- 
making power is not worth the paper or the ink which it has taken 
to express it; it can be nullified at will. 

Mr. President, It is contrary to every rule of construction that 
sucn a construction shall be put upon anv constitutional provi- 
sion as will enable it to be utterly nullified' and made of no effect. 
The strongest argument which you can make against any con- 
struction of any provision of any constitution or any law is that 
that construction -^vill nullify it. 

A great many people, ofBcials and others, have jumped to a con- 
clusion as to the power of Congress on what occurred in the ad- 
mission of the State of Texas. There is no doubt tliat Texas was 
admitted by a joint resolution, but it is equally undoubted that it 
was admitted under the express grant of power in the Constitution 
given to Congress to admit new States, and that the claim that 
there was no power in Congress to negotiate what in substance 
would be a treaty was absolutely disavowed by the men who wero 
most prominent in effecting it. 

_ I have here the Congressional Globe, in which there is a discus- 
sion in the Senate at the time the resolutions were under consid- 
eration for the admission of Texas as a State. I read from the 
speech of Robert J. Walker, of Mis.>?issippi, who was not only a 
very able man, so recognized throughout the length and breadth 
of this country, a man of very great learning, of admitted promi- 
nence, but one of the most earnest advocates for the passage of 
the resolutions by wliich Texas was admitted into \hc Un:ou. I 
read from the Congressional Globe, second session Twontv-cighth 
Congress, page 24(j: " 

Mr. Walker said that he was re.ioiccd that the great American que.stion of 
the reannexatioii of Texas was being ])re.-:euted on nil hands ou the grounds 
350") 



22 

(in which it was placed originally Ijy him (Mr. Walker) in hLs Texas letter of 
the 8th of January, 1844. 

Ho (Mr. V.'alker) then proposed, more than a year since, to admit Texas 
as a Stat<3 of the Union by the action of Coni^ress under that clanso of the 
Constitntion which authorizes Congress to admit new States into the I'^niou. 
Thati-lauso was not confined to our then existing territory, hut was without 
limitation; and the framers of the Constitution had expressly i-ofused to 
limit tlie goiicral power contained in this clau.so to the territory then em- 
luftced within the Union. 

The general power, then, was in express words, and no man has a right to 
interpolate restrictions, and especially restricti<ms which the framers of tho 
Constitution had rejected. But when this mode of admitting Texas as a 
State bv Congress was suggested by him (Mr. Walker) in January, 1.S44, ho 
was held up as the author of a new proposition, unwarranted by authority 
or precedent. Sir, said Mr. W., Mr. Madison, one of tho principal founders 
of tho Constitution, had expressly sanctioned this mode of admitting States 
by Congress out of foreign territory: and one of the most distinguished 
judges of the Supreme Court of tho United States had expressed a similar 
opinion, all which ho (Mr. W.) would show in due time. This opinion was 
also supported by numerous precedents. 

North Carolina, Vermont, Rhode Island, and the Florida parishes of Loui- 
siana were admitted into the Union as Statesor parts of foreign States by the 
action of Congi-ess alone. In the case of Rhode Island, she was not repre- 
sented in the convention which framed the Constitution of the Union, and 
after tho ratification of the Constitution she became the foreign State. Sho 
was treated as such by Congress for several years, and duties were imposed 
upon goods imported from Rhode Island into the Union. 

Sho was treated in every respect as a foreign state, and by the adoption of 
tho Constitution and her withdrawal from the confederacy she became a for- 
eign state and was admitted as such by Congress, being the same question, so 
far as constitutional power is concerned, whether sho had been a foreign 
state two years or two hundred years, when she was admitted by Congres as 
a State of the Union. 

I read on page 3GI of the same volume from Mr. Buclianan: 

Mr. Buchanan said ho might have assumed the privilege of i-eply which ^ 
lieloiiged to him from tho position he occupied on the Committee on Foreign P 
Relations, but he waived it. Not because the arguments on the other side 
had not been exceedingly ingenious and plausible and in-ged with great abil- 
itv, but because ail tho reasoning and ingenuity in the world could not abol- 
ish the T)lain lauijuago of the Constitution, which declared that "New States 
might b«! admitted bv Congress into the Union." But what new States? 

Tho convention had answered that question in letters of light by rejecting 
tho proposed limitation of this grant which would have confined it to States 
lawfully arising within tho United States. The clause was introduced with 
this limitation^ and after full disctission, it ended in tho shape it now held, 
■without limitation or restriction of any kind. This was a historical fact. 

Mr. Prcsiilent, I could go on and cite innumerable utterances 
from the Senators and Representatives who were active in that 
debate to show that while in some instances there were proposi- 
tions looking to enact what really would have been a treaty be- 
tween the United States and the Republic of Texas, they were all 
abandoned, and the advocacy of them was abandoned and the ad- 
mission of Texas put exclusively on the groimd that she was ad- 
mitted as a State under the provision in the Constitution which 
specifically authorizes Congress to admit States. 

The President and two-thirds of the Senate could not admit a 
State. A State could not be admitted by treaty. A State can 
only be admitted by act of Congress, and the Congress of the 
United States in passing the law Avhich did admit Texas did not 
annex Texas and did not acquire one single foot of foreign terri- 
tory. It admitted Texas as a State, and Texas herself reserved 
every inch of territory within her borders. 

Tliis question was again under consideration twenty-five years 

after that in this Cliamlier. That discrission occurrecl in the old 

Chamber, ])ut in this Chamber twenty-five years ago or more, 

twenty-eight years ago, when there were as great lawyers in this 

3y)o 



body as ever graced it, tins very question was ajrain under dis- 
cussion, v.'heu the qi-ostion of the annexation of Santo Domingo 
was before the Senate. 

There had been a treaty negotiated by the President with the 
Dominican Government which had been rejected by the Senatei, 
and the President had sent a message to Congress in which, while 
he did not recommend the annexation of the island, he used lan- 
guage that indicated that such was the design; and upon a reso- 
lution which was introduced to send commissioners for the pur- 
pose of getting certain information this debate came up. and this 
question was discussed by the great lawyers then in the Senate as 
to whether or not by joint resolution foreign territory could be 
annexed. 

In the Senate were such men as Carpenter and Conklin and 
Thurman and Edmunds and Morton and Garret Davis and Sum- 
ner, and every utterance that there was, was either in accordance 
with the doctrine which I have stated here or else was an utter 
failure to accept the challenge when it was laid down to them 
that that was the doctrine. 

Mr. President, what was good law in 1844 and 1870 is good law 
now. What such men as Carpenter and Sumner and Edmunds 
and Thurman thought to be good law we can not go far astray in 
recognizing as good law, for I repeat no greater lawj'ers have ever 
been members of the Senate of the United States. 1 do not pre- 
tend that each one of the lawyers whose names I have mentioned 
gave distinct utterance to the proposition I make, but I do say 
that it was given distinct utterance in the debate, and that in that 
debate Thurman, Garret Davis, Sumner, Morton, Edmunds, and 
TiTimbull all participated. 

Not only were they present but they participated in the debate, 
and while the doctrine was boldly avowed by some, it was denied 
by none and taken issue with by none. I read from the Con- 
gressional Globe, part 1, third session, Forty-first Congress, page 
19:3, what Judge Thurman said on the subject. If ever there was 
a man in this Chamber who was recognized by everybody, not only 
in this body but outside, as a great lawyer that man was Thurman. 
If ever there was a man who cast a doubt on the question as to 
his standing in the very front rank of lav/yers I never heard him. 
Here is what he said: 

Mr. THURiFAX. I believe, sir. it is proper enough for me to say, for I think 
the President himself says it in his annual message, that a treaty was negoti- 
ated for the annexation of Dominica to the United States, and that that treaty- 
failed to receive the requisite votes in favor of its ratifiiatimi, thus disclos- 
ing the fact that between the President of the United States and tlie Senato 
there is a direct opposition of opinion upon the subject of this acquisition. 

Certainly directly parallel to the case we now have before us. 

Now, not willing to defer to the opinion of the Senator— and I do not say 
that in order to blame him; ho has a right to his own opinion— the President, 
with very great earnestness, urges upon Congi'ess and upon the country the 
desirableness of tliis acquisition, and ho goes so far as to suggest tho mode by 
which Ddininica may be annexed. Seeing that it is not liliely to 1)0 annexed 
under tlie treaty making power for want of the ro<iuisite support in the Sen- 
ate, he suggests that it may bo annexed by .ioint rt'snlution. as in tho case of 
Texas; and it is with a view to carry out, no doubt, the wislies or (ii)iui()ns of 
the President in this particular that the Senator from Indiana has introduced 
the joint resolution. 

I repeat that tlie joint resolution which was introduced was not 
for annexation, but for the purpose of sending jvarties thereto get 
information. The discussion, however, proceeded upon the ground 
that that was the object. 
3:0') 



24 

Mr. PASCO. A i)reliniinary step to it. 

Mr. BACON. A preliminary step to it, and, therefore, Mr. Tluir- 
nian conies to the discussion as to whether or not that conkl be 
done. If it coukl not be done, why the preliminary step? He was 
opposing the preliminary step. 

Now, the first tliinpr that strikes mo is this: Is the Senate ready to recede 
friim its position? Is the Senate ■williii.i? to ratify a treaty for the annexation 
of Dominica, or is the Senate ready to annex Dominica by joint resolution? 
And in that connection 1 beg leave to call the attention of the Senate to the 
fuct- 

Listen. This is what Thurman, this great lawyer, said: 

And in that connection I beg leave to call the attention of the Senate to 
the fact that you can not by joint resolution annex Dominica as a Territory; 
you must annex her as a State if vou annex her by joint resolution. There 
is no clause in the Constitution o'f the United States that provides for the 
acquisition of territory bv joint resolution of Congress unless it be one single 
provision, and that is that the Congress may admit new States into the Union. 
And it was upon the argument that there was no limitation upon that power 
to admit now States into the Union, that it was not limited to territory be- 
longing to the United States, but that territory belonging to a foreign power 
might be admitted into the Union as a State. 

I am now answering the question of the Senator from "West Vir- 
ginia [Mr. ElkixsJ by reading to him what Mr. Thurman said. 

It was upon that doctrine that the resolution in the case of Texas was 
passed. But no one has ever pretended— 

This is very strong language, because he had reference to the 
former debate in 18-14 — 

that you could by joint resolution annex territory as a Territory without 
admitting it as a State. Then, if a treaty is to be abandoned, the proposition 
which is 'before the Senate is, Is this Senate prepared to annex Dommica in 
its present condition? 

******* 
Nobodv, I think, has the least idea that any treaty for its annexation can 
be ratitied. This Senate is not so ignorant that it did not know every essen- 
tial thing in this resolution when it voted on the treaty. It would be to stul- 
tify ourselves to say that there is one single material inquiry in all this reso- 
lution that was not known to the Senate when it voted on the treaty; and 
unless the Senators who were opposed to that treaty are willing to recede 
from their opposition and ratify a treaty that may be formed, it follows that 
this resolution can only bo put forward with the view of annexing Dominica 
by joint resolution, and that, as I said before, you can not do unless you are 
willing to take her in as a State. 

That is what Allen G. Thurman said in this Chamber in the 
year 1870. 

I say again that no man on this floor, I think, has the least idea that a 
treaty of annexation can receive the requisite number of votes for its ratifi- 
cation, and therefore— and 1 can not, perhaps, repeat it too oftea- the only 
question is, Will you annex Dominica as a State? 

In the same debate Garrett Davis, of Kentucky, on the same 
day used language which I will quote. I ask the attention of 
Senators particularly to this, because Garrett Davis, in the course 
of his speech, said he was a member of the House at the time the 
Texas resolution was passed. I read now from the same volume, 
page 195: 

The question so remained, and that was the judgment of the American 
people until the propositior. to annex Texas was presented to the consideration 
of Congress and the people of the United States. There was a treaty first 
negotiated by Mr. Calhoun for the acquisition of Texas, and that treaty was 
laid by President Tyler before the Senate for its action, either of ratification 
or rejection. The treaty was rejected by the action of the Senate. After 
that action a joint resolution was intro<luc(vl to annex Texas as a State ot the 
Union-not as a Territory, but as a State of the Union; and the only power 
3o<)3 



25 

that was relied upon to antliorizc Congress to ndmit Texas was that single 
provision of the Constitution which authorizes Congress to admit States into 
this Union. It was my fortune at that time to be a member of the House of 
Kepresentativcs. 

Going on, tlien, to discuss tlie message of the President, and 
coming to the point that he really attempted to annex it by joint 
resolution, Senator Davis used this language, on the same page: 

That is the purpose of the President; that is liis recommendation; that is 
his proposition. It is in furtherance of that proposition, as I understand, 
that this joint resohition has been introduced. It is simply to take up this 
furtive, uncoustitTitional project of the President, to be elfected without 
authority of the Constitution, and perverting and usurping its powers by 
Congress assuming the prerogative of the treaty-making power in admitting 
into the Union as a Territory territory that now forms part of a foreign 
country. It is to forward and give impetus, strength, and power to this 
covert and monstrous proposition that this resolution is introduced. 

Are Senators ready to subordinate the power of tlie Senate to such a pur- 
pose, to suchaproject? Suppose the honorable Senator from Indiana should 
introduce a joint resolution to-morrow " that the country called Dominica, a 
part of the island of San Domingo, be, and the same is hei-eby. annexed to the 
United States of America as a part of the Territory thereof"— 

Just the resolution you have here — 

where is the Senator- 
Said this Senator, speaking in the presence of such men as those 
whose names I have called here to-daj- — ' 

Where is the Senator who would stand up and avow his willingness to 
support such a proposition? 

And nobody answered then or at any other time in that debate. 
It was denounced, scouted, and yet there was no man in the Sen- 
ate at that day who would say he favored such a proposition or 
would defend the right of the 'House of Representatives and the 
Senate to pass a law under such circumstances and to such effect. 

And j-et it is to forward this monstrous proposition, to give it strength 
and a better chance of success; it is to minister to the pet project of tho 
Pi-esideut that, I understand, this resolution will operate. I do not say that 
that is tho motive with which it is introduced; but I say that will be the 
effect, and the only effect, of the passage of such a resolution. 

Mr. STEWART. From whom does the Senator read? 

Mr. BACON. From the speech of Garrett Davis. 1 had read 
previously from the speech of Allen G. Thurman. The Senator 
from Nevada was not present. 

Mr. STEWART. I can cite the Senator to others. 

Mr. BACON. I have no doubt the Senator would be very much 
edified by reading them, and if the Senator had pointed them out 
to me before I began I would have taken pleasure in reading 
them; but as it is I have trespassed so largely upon the time of 
the Senate that I hope that will be allowed to pass by. 

Mr, STEWART. They are not in line with the Senator's argu- 
ment. 

Mr. BACON. I presume the Senator will read them. He read 
us a book the other day. 

Why should gentlemen who believe that tho Constitution does not author- 
ize such a resolution as that— to acquire foreign territory, not to admit it as 
a State into the Union, but simply to acquire foreign territory— why should 
gentK'iiicn who maintain the position that Congress has no such ]iower give 
this resolution the least counteiiance, when its only object is to effect such a 
monstrous and unconstitutional project? 

I repeat that the debate that day was participated in by Thur- 
man, Davis, Suiiiner, Morton, Edmunds, and Trumbull, and that 
3505 



26 

in tlio face of .such enunciation and in the face of such denuncia- 
tion tliere was no man in the Senate to rise up and say, •■ You are 
wrong: we can do this by joint resolution."' On the contrary, 
tlioy all acquiesced in it. 

There is a very significant fact connected with this matter. 
This, as was stated by Garret Davis, was a pet project of the 
President of the United States. That President was Ulysses S. 
Grrant, the very idol of the country at that time certainly. In this 
body were those who were his extreme partisans, and yet while 
the suggestion that it was his jmrpose to have a joint resolution 
passed to annex Dominica was denoimced in this body, we do not 
find one single man who would defend the doctrine that there 
could be any right by a joint resolution to annex Dominica. 

Mr. TELLER. It was denied that there was any such proposi- 
tion. 

Mr. BACON. The Senator from Colorado certainly is not can- 
did in that suggestion. The proposition before the Senate was 
what was stated by Mr. Thurman to be a preliminary step to that 
proposition. It was avowed by Mr. Thurman that the resolution 
before the Senate was a preliminary stc]) to a joint resolution by 
which Dominica cotild be annexed to the United States, and he 
distinctly stated it, and he stated that his opposition to it was that 
the second step could not legally be taken, that there cotild be no 
such thing as annexation of Dominica by joint resohition, and 
that therefore it would be foolish to take the preliminary step 
and incur the expense of making an investigation unless it was 
going to be admitted as a State, which nobody claimed. 

Mr. FORAKER, I wish to ask the Senator from Georgia 
whether or not he deems it conclusive that Senators who were in 
their seats conceded the correctness of the proposition advanced 
by Senators on the floor when they did not rise to take issue with 
them? 

Mr. BACON. I will not say a Senator who was in his seat, but 
I do say that when Senators participated in the debate on that 
i:>articttiar proposition, when that was the question involved and 
upon which and around which the discttssion revolved, when Sen- 
ators did not take issue ^\nth it, it was equivalent to saying that 
they could not succes-sfully do so. 

Mr. FORAKER. I simply desire to placo on record the nega- 
tive of that proposition. Every day we sit here and to-day we 
have sat here and heard propositions advanced which Senators 
who are in their seats do not agree with and the correctness of 
which they do not concede. We do not take issue simply because 
we do not wish to break the continuity of thought, the logical ar- 
rangement of the argument which the Senator is presenting to 
the Senate. 

At the proper time we may have something to say in answer to 
the propositions of the Senator from Georgia. I as one. in view 
of the position taken, want to say now that while I agree with a 
great many of the propositions of the Senator from (Tcorgia, I do 
not at all agree with some of them. I think there is a fallacy lui- 
derlying his whole argument which disposes of all of it whenever 
it is presented; and at the proper time it will be presented. 

Mr. BACON. If the Senator thinks that, I hoi)e the avowed 
purpose of those who sympathize with him, not to be heard in this 
debate, may be changed, and that we may hear from him and 
other Senators: and 1 think we will before we get through. 



27 

Mr. FORAKER. It is a question of policy in debate wliether 
or not every proposition that is advanced shall be met in argu- 
ment. Sometimes there are othor considerations than the mere 
meetmg of argument that may induce Senators to sit still and 
allow a Senator to proceed. All 1 want to register my protest 
against is, it being taken for granted that because we do sit still 
and listen to the Senator with pleasure, as we always do, for he is 
always entertaining, we are on that account to be presumed to be 
in accord with everything he exDresses. 
Mr. WHITE. Mr. Presidents- 
Mr. BACON. Please pardon me. I am nearlv through. I have 
not taken any such position. I have not s^iid that Senators who 
were present upon that occasion and who did not particii)ate in 
the debate were to be taken as acceding to the propositions made, 
but I have said— this was an isolated proposition— that Senators 
who participated in the debate and who failed to take issue with 
it virtually conceded it. 

Mr. President, I certainly did not expect to occupy so much of 
the time of the Senate, and it is fortunate that I said in the begin- 
ning that I did not intend to go into a discussion of the merits of 
the question. I desire to submit to the Senate what I consider to 
be a very grave question. It is a question, if we pass this joint 
resolution, not only of one revolution, but of two revolutions. If 
we pass the joint resolution we enter upon a revolution which 
shall convert this country from a peaceful country into a warlike 
country. If we pass the joint resolution, we revolutionize this 
country from one engaged in its own concerns into one which 
shall immediately proceed to intermeddle with the concerns of all 
the world. If we pass this joint resolution we inaugurate a revolu- 
tion which shall convert this country from one designed for the ad- 
vancement and the prosperity and the happinoss^of our citizens 
into one which shall se;'k its gratification in dominion and domina- 
tion and foreign acquisition. Mr. President, if we pass the joint 
resolution we have entered upon a revolution which shall change 
the entire character of the Govei-nmeut. which is a government of 
equals, a government solely for the benefit of its citizens, into a 
government in which the flag shall float over communities that we 
would never agree .should be equals with us in this Government;. 
That is a great enough revolution, Mr. President, but if we pass 
the joint resolution, we have entered upon a revolution which I 
consider greater and more to be objected to than that: that is a 
revolution where, because the majority has the power, it will in 
this body surrender the great function which the Constitution 
gives to the President of the United States, and also to us as a 
part of the treaty-making power, and we have entered upon a 
field where the restraints of the Constitution are no longer to bo 
observed and whore the will of the majority shall obtain regard- 
less of constitutional restrictions. 
3003 



LltJKHKY U»- LJNbKLbb 



013 744 706 P 



